Peo in Interest of AC

Opinion

25CA0042 Peo in Interest of AC 06-05-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0042 Delta County District Court No. 23JV30029 Honorable J. Steven Patrick, Judge

The People of the State of Colorado,

Appellee,

In the Interest of A.C., a Child,

and Concerning E.M.,

Appellant.

JUDGMENT REVERSED

Division VI Opinion by JUDGE SULLIVAN Tow and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 5, 2025

John F. Baier, County Attorney, Adriana Hartley, Assistant County Attorney, Delta, Colorado, for Appellee

Robert G. Tweedle, Guardian Ad Litem

The Morgan Law Office, Kristofr P. Morgan, Colorado Springs, Colorado, for Appellant ¶1 In this dependency and neglect proceeding, E.M. (mother)

appeals the summary judgment terminating her parent-child legal

relationship with A.C. (the child). We reverse.

I. Background

¶2 In December 2023, the Delta County Department of Human

Services filed a petition in dependency and neglect because mother

tested positive for methamphetamine and THC at the time of the

child’s birth and the child exhibited signs of withdrawal. The

juvenile court granted the Department temporary custody of the

child two days after her birth. The court adjudicated the child

dependent and neglected and adopted a treatment plan for mother.

¶3 In November 2024, the Department moved to terminate

mother’s parental rights and shortly thereafter amended its motion

to include an allegation that she abandoned the child under section

19-3-604(1)(a)(I), C.R.S. 2024.

¶4 On December 6, 2024, the Department filed yet another

motion — this time for termination by summary judgment — on the

sole ground that mother had abandoned the child. As relevant

here, the Department alleged in its motion that mother had

attended eighteen visits during the case, but she had cancelled six

1 visits, failed to confirm three visits, and failed to appear for eight

visits. It alleged that her last visit with the child was on June 28,

2024. It further alleged that mother hadn’t substantially complied

with her treatment plan, that her whereabouts were unknown, and

that communication with her had been sporadic.

¶5 The Department attached several documents to its summary

judgment motion, including (1) an affidavit from a family time

monitor at Court Appointed Special Advocates (CASA) with an

attached visitation log; (2) an identical affidavit from the CASA

family time monitor with attached documents containing two emails

and an unlabeled table; (3) an affidavit from the caseworker; and (4)

orders adjudicating the child and orders from other hearings.

¶6 Mother opposed summary judgment but didn’t file any

affidavits. In her response, mother pointed out that the

Department had failed to file an affidavit as required by section 19-

3-603, C.R.S. 2024. That statute provides that before termination

based on abandonment may be ordered, the party seeking

termination must file an affidavit stating what efforts have been

made to locate the parent if the location of the parent remains

unknown. § 19-3-603. Later that day, the Department filed an

2 affidavit in which a caseworker said that mother’s location

remained unknown. It also outlined the Department’s efforts to

locate her.

¶7 The court granted summary judgment based on its finding

that mother had abandoned the child.

II. Discussion

¶8 Mother contends that the juvenile court erred by terminating

her parental rights by summary judgment. Specifically, she asserts

that (1) genuine issues of material fact precluded summary

judgment and (2) the Department failed to meet its burden on

summary judgment because it presented no admissible evidence in

support of its abandonment claim.

¶9 Because we agree with mother’s first contention, we need not

address the second.

A. Standard of Review and Legal Framework

¶ 10 Whether a juvenile court properly terminated parental rights

presents a mixed question of fact and law because it involves

application of the termination statute to evidentiary facts. People

in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15. However, we review

3 the court’s grant of summary judgment de novo. People in Interest

of M.M., 2017 COA 144, ¶ 11.

¶ 11 Summary judgment is a drastic remedy that is only

appropriate when no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Id. at ¶ 12

(citing People in Interest of S.N. v. S.N., 2014 CO 64, ¶¶ 14-15). The

moving party bears the initial burden of showing that no genuine

issue of material fact exists. Westin Operator, LLC v. Groh, 2015 CO

25, ¶ 20. A material fact is one that will affect the outcome of the

case. M.M., ¶ 13. To meet this burden, the moving party can use

pleadings, depositions, answers to interrogatories, admissions on

file, and affidavits. S.N., ¶ 16.

¶ 12 To grant a summary judgment motion seeking to terminate

parental rights, the juvenile court must determine not only that

there are no genuine issues of material fact, but also that the

moving party has established the applicable statutory criteria for

termination by clear and convincing evidence. People in Interest of

T.M., 240 P.3d 542, 544 (Colo. App. 2010); see also People in

Interest of A.E., 914 P.2d 534, 538 (Colo. App. 1996) (“[T]he required

standard of clear and convincing evidence in parental termination

4 proceedings significantly limits the cases in which summary

judgment would be appropriate . . . .”). Clear and convincing

evidence is proof that persuades the trier of fact that the truth of

the contention is highly probable and free from serious or

substantial doubt. People in Interest of G.R.N.M., 228 P.3d 976, 978

(Colo. App. 2010).

¶ 13 If the moving party fails to meet this burden, summary

judgment must be denied. M.M., ¶ 13. But if the moving party

meets its burden, the burden shifts to the nonmoving party to

demonstrate the existence of a triable issue of fact. Id. at ¶ 14.

Even when the material facts are undisputed, summary judgment is

only appropriate when reasonable minds could draw but one

inference from them. Id. at ¶ 15. In making this determination, we

view the facts in the light most favorable to the nonmoving party.

Id.

B. Abandonment

¶ 14 A juvenile court may terminate parental rights if it finds, by

clear and convincing evidence, that the child has been adjudicated

dependent and neglected and abandoned by the parent. § 19-3-

5 604(1)(a). In this case, all agreed that the child was adjudicated

dependent and neglected.

¶ 15 Turning to the abandonment elements, a parent has

abandoned a child if the parent (1) “surrendered physical custody of

the child for a period of six months or more” and (2) hasn’t

“manifested during such period the firm intention to resume

physical custody of the child or to make permanent legal

arrangements for the care of the child.” § 19-3-604(1)(a)(I). While

abandonment is primarily a question of intent, it may be

determined by the parent’s actions and words. People in Interest of

A.D., 56 P.3d 1246, 1248 (Colo. App. 2002). In determining

whether a child has been abandoned, the circumstances must be

viewed in light of the child’s best interests. Id.

¶ 16 The Department established the first element of abandonment

by clear and convincing evidence. See § 19-3-604(1)(a)(I). No one

disputed that the child was out of mother’s custody and placed in

foster care from late December 2023 through the filing of the

Department’s summary judgment motion on December 6, 2024

(and the grant of summary judgment on December 19, 2024).

6 ¶ 17 However, the Department didn’t satisfy its burden of

establishing that no genuine issue of material fact existed with

respect to the second element of abandonment. On one hand, and

assuming the evidence attached to its motion was admissible, the

Department provided some evidence that supported a conclusion

that this element was met: the caseworker reported “very limited

communication” with mother; at the time of the caseworker’s

affidavit, mother wasn’t engaged in services or treatment; and,

according to the caseworker, mother had “never demonstrated any

intent to resume physical custody” of the child. On the other hand,

the Department presented other evidence that supported the

conclusion that it hadn’t met this element: mother attended

eighteen family time visits during the case and last visited the child

on June 28, 2024; mother scheduled a meeting (that she didn’t

attend) with the caseworker for December 6, 2024; and mother

appeared at six court hearings, including a hearing on July 15,

2024, and a hearing on December 2, 2024. In addition, the

caseworker’s affidavit filed under section 19-3-603 indicated that

mother last met with the caseworker on November 8, 2024.

7 ¶ 18 Viewing the evidence in the light most favorable to mother, as

we must, we conclude that the Department failed to establish the

absence of a genuine issue of material fact regarding whether she

manifested the firm intention to resume physical custody of the

child or to make permanent arrangements for her care. See

Broomfield Senior Living Owner, LLC v. R.G. Brinkmann Co., 2017

COA 31, ¶ 40 (“An issue of fact may arise from the existence of

conflicting permissible inferences from evidence accepted as true.”

(quoting Fin. Assocs., Ltd. v. G.E. Johnson Constr. Co., 723 P.2d

135, 138 (Colo. 1986))); Raygor v. Bd. of Cnty. Comm’rs, 21 P.3d

432, 435 (Colo. App. 2000) (“Where evidence is susceptible of a

contradictory, yet reasonable interpretation, summary judgment is

not appropriate.”).

¶ 19 For example, while mother had limited communication with

the caseworker and wasn’t engaged in treatment, she also attended

hearings in the case, attended a visit with the child, and scheduled

(though didn’t attend) a meeting with the caseworker, all within the

six-month period preceding the Department’s motion. Reasonable

minds could draw differing conclusions from mother’s actions

regarding whether she manifested a firm intention to resume

8 physical custody or to make permanent arrangements for the

child’s care. See M.M., ¶ 15 (summary judgment is only appropriate

when reasonable minds could draw but one inference from the

facts); Schold v. Sawyer, 944 P.2d 683, 684 (Colo. App. 1997) (“The

issue of intent is generally a question of fact [and] can only rarely be

resolved by means of a summary judgment.”).

¶ 20 As a result, the court necessarily had to weigh the evidence to

conclude that the Department proved this element. But at the

summary judgment stage, “the trial judge’s function is not to weigh

the evidence and decide what occurred.” Andersen v. Lindenbaum,

160 P.3d 237, 239 (Colo. 2007); see S.N., ¶ 15 (summary judgment

isn’t a substitute for trial; only at a trial can the court can assess

the weight of the evidence and the credibility of the witnesses).

Because summary judgment may be granted only when reasonable

minds can draw but one inference from the evidence, see Broomfield

Senior Living Owner, ¶ 40, the court erred when it weighed the

evidence to enter summary judgment in the Department’s favor.

¶ 21 Accordingly, we conclude that the juvenile court erred by

granting summary judgment based on abandonment under section

19-3-604(1)(a)(I) and by terminating mother’s parental rights.

9 III. Disposition

¶ 22 The judgment terminating mother’s parent-child legal

relationship with the child is reversed.

JUDGE TOW and JUDGE YUN concur.